The implications of  fundamental dishonesty

01 May 2024

In this recent case Williams-Henry v Associated British Ports Holdings Ltd the Claimant was found to be fundamentally dishonest. In previous similar cases the Claimant may have recovered damages for the legitimate aspect of the claim due to a “Substantial Injustice” however the Judge in this case, considering all factors found there was no “Substantial Injustice” and the Claimant was awarded nothing.

The Claimant in this case would have been awarded £596,704 for injuries sustained following an accident, however the Judge considered all the factors and found her Fundamentally Dishonest within the meaning of the Criminal Justice and Courts Act 2015 s. 57 . He considered in applying the guidelines below in determining the case that she would not suffer a substantial injustice and awarded her nothing for damages. This was in an effort to stamp out dishonesty but further this particular Claimant was unrepentant and also sought to defraud the DWP.

The Judge in determining whether there was a “substantial injustice” should consider:

• If the dishonest damages claimed were small or moderate compared to the size of the assessed genuine damages.
• The scope and depth of that dishonesty – widespread and gross dishonesty was more weighty against substantial injustice than moderate or minor dishonesty.
• The effect of the dishonesty on the construction of the claim by the Claimant and the destruction/defence of the claim by the Defendant. That would be measured by considering all matters including the costs consequences of the work done in relation to the dishonesty compared with the work done had there been no dishonesty.
• The scope and level of the claimant’s assessed genuine disability caused by the Defendant.
• If depriving the Claimant of damages would transfer the cost of care to the NHS, social services and the taxpayer generally and that would be more unjust than if the Claimant had, for instance, a mild or moderate whiplash injury.
• The nature and culpability of the Defendant’s tort. A serious criminal offence was more culpable than mere momentary inadvertence.
• The Judge should consider what it would do in relation to costs if the claim was not dismissed i.e. whether the court would award most of the trial and/or pre-trial costs to the Defendant in any event because fundamental dishonesty had been proven. Also, whether the Claimant would have to pay some or all of their own lawyers’ costs out of damages if the claim was not dismissed. If the genuine damages to be received by the Claimant would be substantially reduced or erased by the adverse costs awards, then it is less likely that substantial injustice would be caused by the dismissal.

Each case therefore does turn on its own merits, but it is clear the Courts can, and will make robust findings on Fundamental Dishonesty.